United States v. Watts

Appeal
from the United States District Court for the Southern
District of Georgia D.C. Docket No. 4:15-cr-00188-WTM-GRS-1

Before
MARTIN, JILL PRYOR, and BRANCH, Circuit Judges.

BRANCH, Circuit Judge

Lamarlvin
Watts appeals his convictions and sentences for armed bank
robbery in violation of 18 U.S.C. § 2113(a) and (d), and
brandishing a firearm during a crime of violence in violation
of 18 U.S.C. § 924(c)(1)(A)(ii). His appeal raises three
issues: (1) whether the district court erred in denying his
motion for judgment of acquittal based on insufficiency of
the evidence; (2) whether the district court denied him his
constitutional right to testify; and (3) whether the district
court correctly applied the sentencing guideline enhancement
for obstruction of justice, U.S.S.G. § 3C1.1,
[1]
based on Watts's attempt to avoid identification by
covering up his distinctive tattoos. For the following
reasons, we affirm.

I.
BACKGROUND

On July
14, 2015, an armed robber entered a Wells Fargo Bank branch
in Savannah, Georgia, and demanded money from the bank teller
while brandishing a .22-caliber handgun. He wore a camouflage
bandana to cover his face and a yellow hat. The robber
escaped with approximately $2, 400 in cash, and a hat and
bandana matching were found nearby. Using security footage
and eyewitness accounts, the police were able to complete a
description of the suspect as a black male wearing dark
pants, black and white athletic shoes, and blue latex gloves.
The robber also had tattoo on his neck with the letter
"U" visible and another tattoo on his forehead
between his eyes in the shape of a small cross.

Acting
on a confidential tip, the police arrested Watts the
following day. A search of his residence and vehicle turned
up, among other things, several .22-caliber rounds, sneakers
that were similar in appearance to the black and white
sneakers of the robber, and a blue latex glove. The search
also uncovered .38-caliber rounds and a .38 caliber revolver
in his vehicle, a bandana of a different color than the one
used in the robbery, and $319 in cash which the police were
unable to link to the stolen currency.

The
evidence at trial included text messages and a call log from
Watts's mobile phone. The texts showed that after media
reports came out on the day of the robbery, Watts was
actively texting his friends, trying to find someone who
could alter tattoos. The next day he contacted a tattoo
artist who had done previous tattoos for Watts, seeking to
modify the tattoos on his forehead (a small cross) and neck
(spelling out "TRU"). The tattoo artist testified
at trial that he covered up Watts's neck tattoo with an
image of doves and a cloud, and modified the cross on
Watts's forehead to be a Japanese symbol.

The
FBI's forensic examiner testified that DNA obtained from
the hat discovered near the scene was from "at least
three individuals" and that the results of the DNA
comparison were inconclusive.

On the
second day of trial, Watts requested permission to proceed
pro se. The court ultimately granted his request,
but required Watts's attorney to remain in an advisory
role. Watts requested a continuance more than once, but the
court denied those requests.

After
the government rested its case, the court notified Watts that
he had a right to testify on his own behalf and he responded,
"I would. I would like to." At that point, he had
an off-the-record discussion with his attorney. The court
then asked him again if he would like to testify, and he
responded, "I do not." The court then stated that
since it had denied Watts's request for a continuance and
there were no other witnesses to be called for the defense,
the defendant's case was closed. Watts again stated
"I'm willing to testify, Your Honor. May I have
-" at which point the transcript simply notes that
another "off-the-record discussion was held between the
defendant and his counsel." Watts did not pursue his
request to testify after that second conversation with
counsel.

Watts
stated that he would make closing arguments on his own
behalf. He stated, "But before we come to this rest,
Your Honor, may I come to understand that the grounds of my
testimony, like can I consult with my lawyer before we rule
that out?" Yet another off-the-record discussion
immediately ensued between Watts and his advisory counsel.
The court then stated that there would be a brief recess
before closing arguments, and Watts asked, "You're
not going to rule on my-" but was interrupted by the
court. After the brief recess, the court stated that it found
"that the defendant's decision not to testify was .
. . made knowingly and voluntarily and also his decision to
proceed pro se was made knowingly and voluntarily."

The
jury convicted Watts on both counts. He then renewed his
motion for judgment of acquittal and moved for a new trial.
The court denied his motions, finding that Watts provided no
support for his allegations that the government failed to
prove him guilty beyond a reasonable doubt.

At
sentencing, the presentence report applied a two-level
enhancement to the offense level under U.S. Sentencing
Guidelines Manual § 3C1.1 because Watts
"willfully" obstructed or impeded the
administration of justice, or attempted to do so, by having
the identifying tattoos on his face and neck altered or
"covered up." With a resulting offense level of 24
and his criminal history category of II, the guidelines range
for the armed bank robbery was 57 to 71 months imprisonment.
The conviction for brandishing a firearm during a crime of
violence required a mandatory minimum of 84 months
imprisonment, consecutive to any other term of imprisonment
imposed.

Watts
objected to the two-level enhancement for obstruction of
justice, arguing that his conduct in attempting to cover his
tattoos should not be considered obstruction under the
guidelines. The court noted his objection, but adopted the
factual statements in the presentence report and applied the
enhancement. The court sentenced Watts to 148 months
imprisonment, a term that is within the guideline range
calculated in the ...

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